Attorney-Client Privilege Under Attack

Attorney-Client Privilege under Attack in Manhattan

The new Manhattan DA, Cyrus Vance Jr., via his assistant Daniel Alonso, has just issued guidelines for charging businesses and other organizations with crimes because of the behavior of individuals who work for those organization. (Hanging over the guideliness, of course, is the memory of Judge Lewis Kaplain’s rebuke to the U.S.

Attorney’s Office for the Southern District of New York, in the KPMG case.)

At “White Collar Crime Prof Blog,” Ellen Podgor notes that Vance keeps open the door to demanding a company waive the attorney-client privilege if it wants credit for cooperationg. By contrast, footnote 7 in the DA’s document observes: “A particularly sensitive issue was whether an organization’s willingness to waive the attorney client privilege and work product protection should be considered under the rubric of cooperation. In 2006, through what is known as the McNulty Memorandum, DOJ modified, but did not eliminate, a federal prosecutor’s authority to demand or seek such privilege waivers as a factor of cooperation. DOJ’s latest word on the subject, issued in August 2008 by Deputy Attorney General Mark Filip, barred federal prosecutors from seeking privilege waivers from organizations (emphasis added).

Eliot Spitzer: CNN Journalist?

According to the NYT : “Mr. Spitzer has held conversations — but so far only informal ones — about becoming a regular contributor to the cable news channel, according to two people who were briefed on the matter.” Said David Letterman: “That would be a switch—someone paying him for an hour.” Let us hope, at least, that Spitzer will not be reporting on business.

Reflecting on Spitzer’s post-scandal life, I cannot help but think, by way of comparison, of John Profumo, the British Secretary of State for War, who was found in 1963 to have had an affair with call girl Christine Keeler. Profumo resigned from public service and spent the remaining forty-three years of his life laboring in obscurity for the charity Toynbee Hall. Different times.

These Were the People Overseeing BP

Like it or not (I don’t), the U.S. government owns the land on which BP was drilling, and it leased drilling rights on its property to the oil company BP. Ultimately, then, the well now spilling oil is on government property. And government officials had a duty to make certain the project did no harm.

In light of that, take a look at how the government officials in charge of overseeing the project perceive themselves: http://www.mms.gov/jobs/index.htm : ocean waves, windmills, fish, sunsets, coral, Indians, totem poles, birds, ponds. Remember that when people speak of government regulators. The Minerals Management Service is not hard-nosed scientists and engineers analyzing the technologies of mineral exploitation and the contingencies of accident. They’re a bunch of Greens who have wandered away from an Earth Day celebration. I don’t wonder that an investigation of the agency turned up allegations of drug parties and sexual liaisons. These people came from the Sex, Drugs, and Rock 'n' Roll generation, and they found a safe harbor in government "work." (Best line of the inspector general’s report: "Sexual relationships with prohibited sources cannot, by definition, be arm's-length.")

So, when blame for the Deepwater Horizon accident is being allocated, somebody should point to our government bureaucracy’s flight from technological expertise. And whoever had the idea that the Minerals Management Service needed a “Kid’s Page” should be the first to go.

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